STATE OF OHIO, PLAINTIFF-APPELLEE, v. CORNELIUS PATTERSON, JR., DEFENDANT-APPELLANT.
CASE NO. 5-11-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
June 25, 2012
[Cite as State v. Patterson, 2012-Ohio-2839.]
Appeal from Hancock County Common Pleas Court Trial Court No. 2009-CR-218
Judgment Affirmed
Date of Decision: June 25, 2012
APPEARANCES:
Deborah Kovac Rump for Appellant
Mark C. Miller and Drew A. Wortman for Appellee
{1} Defendant-appellant, Cornelius Patterson, Jr. (“Patterson“), appeals the Hancock County Court of Common Pleas’ judgment of conviction and sentence. For the reasons that follow, we affirm.
{2} During the early hours of October 18, 2009, Patterson‘s live-in girlfriend, Stacey Daniels, had an argument with David Snyder, the live-in ex-boyfriend of her friend, Samantha Garberson, in the apartment Snyder and Garberson shared, which was located directly above the apartment Daniels shared with Patterson. (Feb. 8-15, 2011 Tr. 447-456, 469-470, 706-708). Daniels left the apartment and returned to her apartment where she had a physical confrontation with Patterson outside the apartment. (Id. at 470-472, 706-708). Upon hearing the commotion, Snyder exited his apartment, and Patterson chased Snyder back into his apartment with a handgun. (Id. at 473-478, 510, 526, 634-635). Snyder entered his apartment and locked the door. (Id. at 634-635). Patterson kicked Snyder‘s door in; Snyder struggled to hold the door closed; and, Patterson fired a shot through the door killing Snyder. (Id. at 410, 478, 857-858, 634-638, 990-991). While Patterson and Daniels fled to Toledo, Patterson discarded the firearm alongside the road. (Id. at 481, 712-714, 755, 991).
{3} On October 27, 2009, the Hancock County Grand Jury indicted Patterson on Count One of aggravated felony murder in violation of
{4} On November 12, 2009, Patterson appeared for arraignment and entered pleas of not guilty. (Doc. No. 9); (Nov. 12, 2009 Tr. at 4). The trial court set bond at $1 million, without a 10% bond provision. (Doc. No. 9).
{5} On November 13, 2009, Patterson filed a motion asking the trial court to reduce his bond or, alternatively, allow him to post a property bond, surety, or permit the 10% bond provisions under
{6} On January 7, 2010, Patterson filed a motion for change of venue due to allegedly prejudicial pretrial publicity. (Doc. No. 31). On January 21, 2010, the trial court held a hearing on this motion and others Patterson previously filed. (Doc. No. 36). However, the trial court deferred ruling on Patterson‘s change of venue motion until trial. (Id.).
{8} The matter proceeded to jury trial on February 8, 2011. On February 15, 2011, the jury found Patterson guilty on all four counts, along with the attendant gun specifications. (Doc. Nos. 158-161).
{9} On April 11, 2011, Patterson filed a sentencing memorandum arguing that Counts One, Two, and Three were allied offenses. (Doc. No. 171).
{10} On April 21, 2011, a sentencing hearing was held. (Doc. No. 172). The trial court determined that Counts One, Two, and Three were allied offenses under
ASSIGNMENT OF ERROR NO. VIII
PATTERSON‘S RIGHTS TO ASSIST IN HIS DEFENSE, ENJOY EFFECTIVE ASSISTANCE OF COUNSEL, A PRESUMPTION OF INNOCENCE AND DUE PROCESS WERE VIOLATED BY THE EXCESSIVE BOND IMPOSED UPON HIM BY THE TRIAL COURT.
{12} In his eighth assignment of error, Patterson argues that the trial court‘s excessive bail violated his right to effective assistance of counsel under the 6th Amendment, his due process rights under the Fourteenth Amendment, and his protection against excessive bail under the Eighth Amendment and Sec. 9, Article I of the Ohio Constitution.
{13} The Eighth Amendment to the U.S. Constitution and Section 9, Article I of the Ohio Constitution both forbid “excessive bail.”
In determining the types, amounts, and conditions of bail, the court shall consider all relevant information, including but not limited to:
(1) The nature and circumstances of the crime charged, and specifically whether the defendant used or had access to a weapon;
(2) The weight of the evidence against the defendant;
(3) The confirmation of the defendant‘s identity;
(4) The defendant‘s family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution;
(5) Whether the defendant is on probation, a community control sanction, parole, post-release control, bail, or under a court protection order.
{14} “A trial court has broad discretion to set bail in an amount necessary to ensure that the accused will appear at all subsequent stages of the proceedings.” State v. Vaughn, 106 Ohio App.3d 775, 787 (12th Dist.1995), citing Bland v. Holden, 21 Ohio St.2d 238, 239 (1970). Consequently, an appellate court reviews the trial court‘s decision concerning the amount of bail under an abuse of discretion standard. State v. Thomas, 8th Dist. No. 89583, 2007-Ohio-1692, 8. An abuse of discretion is more than an error of judgment; rather, it connotes that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{15} The trial court did not abuse its discretion by setting Patterson‘s bond at $1,000,000 with no 10% provision in this case. Patterson was charged with
{16} Patterson also alleges that his excessive bail denied him effective assistance of counsel and a presumption of innocence. We disagree. To begin with, Patterson fails to offer any support for his bald assertions. Aside from that, the record indicates that Patterson was afforded extra accommodations to meet with defense counsel while in jail. (Nov. 4, 2010 Tr. at 11-13). The record is
{17} Patterson‘s eighth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IV
PATTERSON‘S ATTORNEYS PROVIDED INEFFECTIVE ASSISTANCE BY NOT TIMELY RAISING THE CHANGE OF VENUE ISSUE PRIOR TO THE JURY BEING EMPANELED, OR THE TRIAL COURT ABUSED ITS DISCRETION BY UNTIMELY DENYING THE MOTION.
{18} In his fourth assignment of error, Patterson argues that trial counsel was ineffective for failing to raise the issue of pretrial publicity prior to empaneling the jury. Patterson further argues that the trial court erred by untimely denying his motion for a change of venue until after the trial was already underway.
{19} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984).
{20} A trial court‘s ruling on a motion for a change of venue pursuant to
{21} A defendant claiming that he was denied a fair trial because of pretrial publicity must show that one or more jurors were actually biased. Roberts at 117, citing State v. Treesh, 90 Ohio St.3d 460, 464 (2001); Mayola v. Alabama, 623 F.2d 992, 996 (5th Cir.1980). Even pervasive, adverse publicity does not inevitably lead to an unfair trial, and only in rare cases may prejudice be presumed. Roberts at ¶ 117, citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791 (1976); Treesh, 90 Ohio St.3d at 464.
{22} On January 21, 2010, the trial court held a hearing on the motion but determined that the issue should be deferred until the potential jurors answered questions concerning pretrial publicity during voir dire. (Doc. No. 36); (Jan. 21, 2010 Tr. at 23-27). Prior to trial, the parties and the trial court agreed that the potential jurors would answer a special two-part questionnaire concerning pretrial publicity. (Feb. 8, 2011 Tr. at 6, 31, 229-230). Question one asked, “Have you read or heard any media accounts of the case pending against Cornelius Patterson,
So the record is clear, the Court is overruling the Defendant‘s motion for change of venue, I think that‘s been the understanding of counsel for the Defendant, counsel for the State, obviously we seated a jury, and we are now into the trial. Just so the Record is complete, that has been kind of hanging in the sense [sic] and the Court should have put that on the Record after the jury was sworn, but it‘s now on the Record and that takes care of things. (Id. at 535-536).
{23} Patterson‘s ineffective assistance of trial counsel argument lacks merit. Trial counsel‘s performance on the pretrial publicity issue was not deficient or unreasonable. Contrary to Patterson‘s coloring of the record, trial counsel did address the issue of pretrial publicity through voir dire. The Ohio Supreme Court
{24} Patterson‘s fourth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. VII
PATTERSON‘S RIGHTS TO DUE PROCESS OF LAW, AN IMPARTIAL JURY, AND A FAIR TRIAL PURSUANT TO THE 6TH AND 14TH AMENDMENTS WERE VIOLATED BECAUSE HE WAS SEEN MULTIPLE TIMES BY THE JURY POOL IN SHACKLES AND HANDCUFFS AND BEING TRANSPORTED IN THE COMPANY OF DEPUTY SHERIFFS.
{25} In his seventh assignment of error, Patterson argues that he was denied the right to a fair trial since members of the jury saw him shackled and escorted by law enforcement during the voir dire.
{27} Patterson‘s argument lacks merit. At most, the record indicates that a potential juror, who was not ultimately selected as a juror or alternate juror, briefly witnessed Patterson handcuffed while Deputy Sheets and Deputy McCartney brought Patterson to the courthouse for trial. (Feb. 8, 2011 Tr. at 22-23). Deputy Sheets indicated that, before bringing Patterson into the courthouse, he scanned the hallway, and no one was in the hallway at that time. (Id. at 23). Deputy Sheets further indicated that his back was facing the door, along with Deputy McCartney, “Mr. Patterson stepped inside the hallway, handcuffs were taken off, and as I turned around I saw a female standing in the hallway at the time. That was it, Your Honor.” (Id. at 24). Deputy Sheets identified the female as Deputy McCartney‘s wife, who happened to also be drawn as a potential juror in the case. (Id.). Patterson informed the trial court that he recalled also seeing a line of potential jurors gathering in front of the jury room. (Id. at 25-26). Deputy Sheets
{28} The record further indicates that members of the prospective jury were not biased from witnessing Patterson accompanied by sheriff‘s deputies. Defense counsel questioned several prospective jurors about this issue during voir dire, and the prospective jurors indicated that they “didn‘t think anything” about seeing Patterson with sheriff‘s deputies, or that they thought he was using the restroom, on one occasion, and going to lunch on another. (Id. at 256-258). When Patterson raised this issue to the trial court again, the following dialogue transpired:
THE COURT: We visited that issue a couple of times already today. I think the Record is complete. You are in the custody of the sheriff. You are obviously in a three-piece suit, leg irons are covered by your trousers. You have not been cuffed in the courthouse as far as I know after your arrival this morning; is that correct?
THE DEPUTY: Just in the hallway when we took the handcuffs off, that‘s it.
THE COURT: I assume that tomorrow will be the same and we will proceed accordingly. (Id. at 340-341).
{29} Finally, the trial court instructed the jury that the defendant is presumed innocent until proven guilty, and that the “evidence” for purposes of rendering their verdict was limited to the testimony, the admitted exhibits, facts agreed to by counsel, and facts the court requires them to accept as true. (Id. at 347, 348-349, 1210-1211). In light of the record herein, we conclude that any prejudice Patterson suffered was harmless beyond a reasonable doubt and not grounds for a new trial.
{30} Patterson‘s seventh assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. I
THE EVIDENCE IS INSUFFICIENT TO PROVE AGGRAVATED BURGLARY BECAUSE PATTERSON DID NOT TRESPASS INTO THE VICTIM‘S APARTMENT. AND THE STATE FAILED TO PROVE PATTERSON ACTED “PURPOSELY.” ACCORDINGLY, HIS CONVICTION FOR AGGRAVATED MURDER MUST THEN ALSO FAIL.
ASSIGNMENT OF ERROR NO. III
THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
THE TRIAL COURT ERRED BY NOT GRANTING PATTERSON‘S MOTION TO DISMISS THE TAMPERING OF EVIDENCE CONVICTION FOR LACK OF VENUE.
{31} In his first assignment of error, Patterson argues that the State failed to produce sufficient evidence that he trespassed into the victim‘s apartment for purposes of his burglary conviction. Patterson further argues that the State failed to produce sufficient evidence to support his aggravated felony murder conviction since his burglary conviction was an element of that offense. Finally, Patterson argues that the State failed to produce sufficient evidence that he acted purposefully to support his aggravated felony murder conviction.
{32} In his third assignment of error, Patterson argues that his aggravated felony murder conviction was against the manifest weight of the evidence since the record lacked evidence that he intended to shoot the victim.
{33} In his fifth assignment of error, Patterson argues that the trial court erred by denying his
{34} When reviewing the sufficiency of the evidence or the denial of a
{35} Patterson was convicted under
[n]o person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender has a
deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
Patterson was also convicted under
[n]o person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any * * * thing, with purpose to impair its value or availability as evidence in such proceeding or investigation * * *.
{36} The State of Ohio called 20 witnesses at trial. We will summarize the substance of their testimony herein. Aaron Flechtner (“Flechtner“), a patrolman with the Findlay Police Department, testified that, around 4:30 a.m. on October 17, 2009, he responded to a shooting at 2200 Jennifer Lane Apartment 8 in Findlay, Ohio. (Feb. 8-15, 2011 Tr. at 398-400). Flechtner testified that, as he approached the eastside door of the apartment complex, an unknown male pointed upstairs to Apartment 8, where Flechtner could hear a female yelling that someone had been shot. (Id. at 407). Flechtner testified “the door to Apartment 8 was
{37} Garberson was walking all over the apartment talking on her phone hysterically, according to Flechtner. (Id.). Flechtner identified State‘s exhibit 2 as a diagram of the apartment, and he testified that he recalled observing a baseball bat in the apartment. (Id. at 411-412, 427-428). He testified that the apartment door opened into the apartment. (Id. at 412). Flechtner identified State‘s exhibit 3 as a photograph of the entrance to Apartment 8, viewing the living room area. (Id.
{38} Robert Wood (“Wood“) testified that, in October 2009, he was an over-the-road heavy-haul truck driver for Hunt Transportation based in Omaha, Nebraska. (Id. at 436-437). Wood testified that, on Sunday, October 18, 2009, he
{39} Samantha Garberson (“Garberson“) testified that, on October 18, 2009, she resided at 2200 Jennifer Lane, Findlay, Ohio Apartment 8, in Hancock County. (Id. at 447-448). The apartment complex is a two-story building, with four apartments upstairs and four apartments downstairs and two entrance doors, according to Garberson. (Id. at 448). Garberson testified that apartments one through four are on the first floor, and apartments five through eight are on the second floor. (Id. at 449). She testified that, in October 2009, Stacey Daniels and Cornelius Patterson lived in Apartment 1. (Id. at 451). Garberson testified that Snyder, who was her ex-boyfriend, and her son lived with her in Apartment 8. (Id. at 452). Garberson testified that two of Stacey‘s children were living with Patterson and her, and that she met Stacey since their children went to school together. (Id. at 453-454). Garberson testified that she knew Patterson as “Diamond.” (Id. at 455).
{41} Garberson testified that Stacey and she were tired of arguing with Snyder, so they took the kids and went to Stacey‘s apartment. (Id.). Garberson testified that Stacey did not have her key, so she started banging on the apartment door; and then, Diamond flung open the door, grabbed Stacey by the throat, threw her to the ground, and began choking her. (Id. at 470-472). Garberson testified that Diamond eventually released Stacey, and they began to talk. (Id. at 473). Garberson testified that, after talking with Stacey, Diamond became upset and went upstairs with a black handgun (State‘s exhibit 11). (Id. at 473-476). Garberson testified that she thought Diamond was going to scare Snyder with the gun. (Id. at 477). Garberson stayed at the bottom of the stairwell until she heard Diamond kicking in the apartment door when she began to go up the stairs. (Id. at 478). Garberson testified that, when she came up the stairs, she saw Diamond
{42} Garberson testified that the apartment door frame was busted from being kicked in. (Id. at 483). She identified State‘s exhibit 2 as a diagram of her apartment, and she testified that Snyder was sleeping on the bed on the living room floor. (Id. at 483-484). Garberson identified State‘s exhibit 3 as a photograph of her apartment and testified that the damage to the door was freshly done the night of the incident. (Id. at 486). Garberson identified State‘s exhibit 12 as “a little piece that goes over top of the door latch” she saw “laying on the floor.” (Id. at 489). Garberson testified that she did not have any damage or bullet holes in her door (State‘s exhibit 13) prior to the incident. (Id. at 489-491). Garberson identified State‘s exhibit 7 as a photograph of Snyder. (Id. at 492).
{44} On re-direct, Garberson testified that she did not drink anything when she returned to the apartment from the bar. (Id. at 521). She testified that Snyder came out of the apartment after Diamond attacked Stacey, and, thereafter, Snyder went back into the apartment. (Id. at 526). Garberson testified that she has heard the sound of wood breaking before, and she heard gunshots during her time with the National Guard. (Id.). She testified that she thought Diamond was just scaring Snyder, and that she did not actually see Diamond shoot the gun. (Id. at 527).
{45} Jay Myers (“Myers“), a Findlay Police Department detective, testified that, around 5:30 a.m. on October 18, 2009, Captain Horne advised him that a homicide occurred at 2200 Jennifer Lane, Findlay, Hancock County, Ohio. (Feb. 10, 2011 Tr. at 538, 540-541). Myers testified that he observed damage to the apartment door frame, and that it appeared that the door had been forced open. (Id. at 541). Myers identified State‘s exhibit 5 as a photograph of the doorway to
{47} On cross-examination, Myers testified that he found a Wilson aluminum softball bat near the front entrance of the apartment. (Id. at 596-597). According to Myers, other law enforcement officers indicated that the softball bat was part of the argument between Snyder and the other individuals. (Id. at 597-598). Myers testified that, from State‘s exhibit 3, he could see around six to seven Bud Light beers near the couch in Apartment 8. (Id. at 600-602). Myers testified that law enforcement originally thought the hole in the apartment door was an old bullet hole since it appeared to be repaired. (Id. at 603). He testified that their investigation eventually lead them to believe that the bullet that killed Snyder passed through the apartment door. (Id. at 605). Myers testified that he recovered very small wood particles from the victim‘s shirt near the bullet wound. (Id. at 608-609). Myers testified that, based upon the location of the bullet wound, the small wood fibers near the entrance of the wound, and the angle the bullet entered
{48} Nicholas Trausch (“Trausch“) testified that, on October 18, 2009, his girlfriend, Teresa Sharp, his daughter, and he were living at 2200 Jennifer Lane, Apartment 4, and Apartment 8 was directly above their apartment. (Id. at 623, 626). Trausch testified that he knew the girl who lived in Apartment 8 as “Sam,” but he did not know the man who lived with her. (Id.). He testified that Stacey, Diamond, and two children, Saphire and Lela, lived in Apartment 1. (Id. at 627-628). Trausch testified that, on Saturday night October 17, 2009, he was awakened by a loud noise and yelling coming from the upstairs apartment, so he opened his apartment door and asked the two girls he saw standing upstairs to
{49} On cross-examination, Trausch testified that it sounded like the person coming down the steps had “something in his hand * * * that was going to cause harm.” (Id. at 652). Trausch testified that he wrote in his statement that the man from upstairs was carrying a ball bat, though he did not recall actually seeing the man. (Id. at 658, 664). Trausch testified that he saw Patterson standing right in front of the door in the hallway, not in the apartment. (Id.). Trausch testified that he remembered Patterson “saying you got hit or something along them lines, or you ain‘t hit, something like that.” (Id. at 668). When asked to clarify Patterson‘s statements, Trausch testified that Patterson first asked Snyder whether he was hit or not, and then made the statement that Snyder was not hit. (Id. at 671, 682-683). Trausch testified that he did not know whether or not the apartment door was open or closed when the gunshot went off. (Id. at 672). On re-direct, Trausch testified that he never saw the man coming down from upstairs, but he assumed it was Snyder. (Id. at 678). He also “figured” Snyder was carrying a baseball bat since he heard something metallic or aluminum. (Id.). Trausch considered Patterson a friend, but he did not know Snyder. (Id. at 682-683).
{50} Keandra Gipson (“Gipson“) testified that she is sixteen years old; she lives with her grandmother, Barbara Combs, in Cygnet; and, Stacey Combs is her
{51} Gipson testified that they went back to Samantha‘s apartment until the man living with her threatened Stacey, so they left and went back to Apartment 1. (Id. at 706-707). When they arrived at Apartment 1, Diamond came out and knocked Stacey down, and they continued to argue near the stair landing, according to Gipson. (Id. at 708). Gipson testified that Stacey had the gun in her purse at that time. (Id. at 708-709). She also testified that the other children and she went into Apartment 1 and closed the door, and thereafter, heard a loud bang. (Id. at 709-710). Gipson testified that, after hearing the loud bang, she left with Stacey, Diamond, and the children out the back door of the apartment complex, and Diamond drove all of them to Gipson‘s house. (Id. at 710-711). According to Gipson, during the car ride, Stacey wiped off the gun with her shirt sleeve; Diamond disassembled the gun into two parts; and, Diamond threw the gun parts out of the car window near some railroad tracks. (Id. at 712-713). Gipson testified that Diamond threw out the two gun parts at different times, one time near a small town called Bairdstown. (Id. at 713-714). Gipson testified that Diamond
{52} Barbara Combs (“Barbara“) testified that, in October 2009, she was living with her fiance, Ron Mclain, and her granddaughter, Kendra, in Cygnet, Ohio. (Id. at 729-730). Barbara testified that: Stacey was her daughter, and Stacey had four children, Jasmine (15), Jada (11), Saphire (5 or 6), and Aaliyah (3); Stacey‘s father, Gary Combs, lives in Van Buren; and, Patterson is Stacey‘s boyfriend. (Id. at 732-733). Barbara testified that, around 5:00 a.m. on the morning of October 18, 2009, her granddaughters showed up at her house unexpectedly. (Id. at 733-734). Barbara testified that her granddaughters were not at her house when she returned home from work later that day. (Id. at 734).
{53} Pamela Ackerman (“Ackerman“) testified that, in October 2009, she was living with her fiance, Gary Combs, in Van Buren, Ohio. (Id. at 736). Ackerman testified that Stacey called Gary early in the morning on October 18,
{54} Timothy Gilbert (“Gilbert“) testified that he lives in Bowling Green, Ohio with his girlfriend, Robin Bankey. (Id. at 743). Gilbert testified that, around 6:30 a.m. on October 18, 2009, Diamond and his niece, Stacey, came to his house unexpectedly. (Id. at 745-747). Gilbert testified that Stacey was “a little upset” and used their phone to call Gary Combs, who came to pick them up. (Id. at 748-749).
{55} Gary Combs (“Combs“) testified that, around 5:20 a.m. on October 18, 2009, he received a phone call from his daughter, Stacey, informing him that
{56} David Bright (“Bright“), a police officer with the City of Toledo, testified that, on October 18, 2009, he served an arrest warrant upon Patterson at 4777 Santa Maria, Toledo, Ohio. (Id. at 761-762). Bright identified Patterson as the person arrested that day. (Id. at 765).
{57} David Claflin (“Claflin“) testified that, around 1:00 p.m. on October 18, 2009 while he was employed as a Findlay police officer, he responded to mile post 178 on I-75 to locate a suspect‘s vehicle. (Id. at 769-771). Claflin described the vehicle as a 1997 Nissan Maxima, depicted in State‘s exhibits 9 and 10. (Id. at
{58} Wood County Sheriff‘s Deputy Samuel Cardenas (“Cardenas“) testified that, on October 18, 2009, he was dispatched to North Baltimore, Ohio because a truck driver had located part of a weapon alongside the roadway. (Id. at 776-779). Cardenas testified that he spoke with the truck driver, Woods, who took him to the west side of Galatea Road where he discovered the lower half frame of a handgun. (Id. at 779-780). Later that same day, the Findlay Police Department called and inquired about the weapon believing it might have been involved in the shooting, according to Cardenas. Cardenas testified that he met Findlay police detectives in the area where part of the firearm was located, and they began searching the area for the other portion of the handgun. (Id. at 781-782). Cardenas testified that he located the handgun slide about 50 to 75 yards north from where the handgun frame was found. (Id. at 782). Cardenas identified: State‘s exhibit 23 as a photograph of the area where the handgun slide was found; State‘s exhibit 24 as a photograph of the house near where the handgun slide was found; and, State‘s exhibits 25 and 26 as photographs of the handgun slide. (Id. at 782-784).
{59} Dr. Maneesha Pandey (“Dr. Pandey“), a deputy coroner and forensic pathologist at the Lucas County Coroner‘s Office, identified State‘s exhibit 39 as
{60} On cross-examination, Dr. Pandey testified that Snyder‘s blood alcohol level was “point 11 percent, which is higher than the legal limit * * * point 08 percent” and Snyder‘s marijuana level measured 42 nanograms/ml of urine. (Id. at 833). She testified that she did not see any blood on Snyder‘s t-shirt. (Id. at 834). Since the bullet lacerated the spinal cord, Snyder may well have been paralyzed from the legs down, according to Dr. Pandey. (Id. at 835). Dr. Pandey testified that the abrasions on Snyder‘s elbows would be consistent with carpet burns. (Id. at 835-836). She testified that she was unable to locate any stippling near the entrance of the bullet wound, like the stippling she located on Snyder‘s wrist. (Id. at 836). Dr. Pandey testified that she was unable to identify the foreign material in Snyder‘s wrist. (Id. at 836-837). On re-direct, Dr. Pandey testified that she was unable to determine how long the marijuana was in Snyder‘s system, but generally marijuana stays in a person‘s urine for a few days. (Id. at 839-840). She testified that the fact that Snyder had pseudo stippling on his wrist and not
{61} Dr. Mark Fox (“Dr. Fox“), the Hancock County Coroner, identified State‘s exhibit 39 as David Snyder‘s autopsy report, which he received from Dr. Pandey. (Id. at 851, 856). Dr. Fox testified that Snyder died of a gunshot wound to the torso/chest area, and the manner of death was a homicide. (Id. at 857). Dr. Fox identified State‘s exhibit 48 as a copy of the death certificate. (Id. at 857-858).
{62} Julie Cox (“Cox“), a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation (“BCI“), identified State‘s exhibit 50 as a copy of her DNA report. (Id. at 859-860, 868). Cox testified that she identified a partial DNA profile consistent with Patterson on the handgun slide. (Id. at 873-874). On cross-examination, Cox testified that there is no way to determine what kind of biological fluid the DNA came from. (Id. at 884). She testified that she was unable to obtain sufficient DNA from items 1.3, the cartridge swab, and 2.1, the handgun trigger swab, to make any DNA comparison. (Id. at 885-886). Cox testified that the only DNA recoverable from the handgun trigger was consistent with a female. (Id. at 886-887). Cox further testified that Wood was not the source of the additional DNA found on the slide of the handgun. (Id. at 888-889).
On re-direct, Cox testified that the DNA on the handgun slide was from a male and consistent with Patterson‘s DNA. (Id. at 891). Cox further testified that the amount of DNA transferred to an object by touching it is much less than the amount of DNA found in biological fluids. (Id. at 894-895).{63} Todd Wharton (“Wharton“), a forensic scientist in the firearms and tool mark section of BCI, identified State‘s exhibit 11 as a Czechoslovakian semi-automatic firearm chambered in 7.62 Tokarev, model number CZ52. (Id. at 896-897, 905). Wharton testified that he swabbed the firearm and a cartridge for DNA. (Id. at 906). Wharton testified that the weapon was operable, and he test-fired the weapon twice with the 7.62 Torkarev caliber cartridges (State‘s exhibit 19) to acquire bullets to compare with the bullet submitted into evidence (State‘s exhibit 27). (Id. at 907-911, 914, 917, 919). Wharton identified State‘s exhibit 51 as the bullets he recovered from the test fires and State‘s exhibit 35 as the fired cartridge law enforcement submitted into evidence. (Id. at 915, 920). Wharton testified that the test-fired bullets and the submitted bullet had some matching individual characteristics to the firearm (State‘s Exhibit 11) but not enough for a positive identification of the weapon. (Id. at 925-927). Wharton testified that some firearms leave a significant amount of identifying characteristics on the fired bullet, and some firearms do not, depending upon the firearm‘s manufacturer, age, and use. (Id. at 927). Firing a bullet through a wooden door would affect one‘s
{64} Rodney Hampton (“Hampton“), an inmate at the Correction Reception Center, testified that he made a plea deal with the Hancock County Prosecutor‘s Office in exchange for his testimony at trial. (Id. at 979-983, 994-995). Hampton testified that he had a drug conviction out of Seneca County and an aggravated robbery conviction and tampering with records conviction out of Wood County. (Id. at 984-985). He testified that he first met Patterson, who he knew as “Diamond,” around November 20, 2009, and they became friends/acquaintances. (Id. at 986). According to Hampton, Diamond stated that his case started with an argument between the victim and his wife. (Id. at 987-988). Hampton testified that Diamond told him that a 9 millimeter gun was found,
{65} William Domme (“Domme“), a Findlay Police Department detective, testified that, during his investigation into the October 18, 2009 shooting, he interviewed Derrick Currie and Rodrick Stallings, who were both ruled out as suspects. (Id. at 1011-1013). Domme testified that Diamond was a suspect, and they learned that Diamond shared a cell phone number with Stacey Daniels. (Id. at 1013). Law enforcement requested cell phone records from Verizon Wireless and determined that a call had been placed to Pam Ackerman from the cell phone, testified Domme. (Id. at 1013-1014). Domme testified that Detective Tuttle and he went to Ackerman‘s home where he located four females, later identified as the children that were with Stacey and Diamond, and they learned of the location of Stacey and Diamond‘s vehicle. (Id. at 1014). The Findlay Police Department never released any specific details about the investigation to the news media, according to Domme. (Id. at 1022).
{66} Scott De Graaf (“De Graaf“), a patrol officer assigned to the detective division of the Findlay Police Department, testified that, when he responded to 2200 Jennifer Lane, Apartment 8, the apartment door was open, the
{67} Thereafter, the State moved for the admission of exhibits; the trial court admitted State‘s exhibits 1-4, 6-15, 17-30, 33-54, and defendant‘s exhibit E; and, the State rested. (Id. at 1071-1084). Patterson then made a
{68} Schwab testified that he is a licensed attorney practicing in Lucas County, Ohio, and that he knew Patterson after representing several of his family members over the years. (Id. at 1095-1097). Schwab testified that, on a Sunday in October 2009, Patterson and Patterson‘s mother, Mrs. Taylor, contacted him for the purpose of retaining him as counsel for the Findlay shooting. (Id. at 1097-1098). Schwab testified that, after talking with Patterson, he contacted the Findlay Police Department to discuss arrangements for Patterson to turn himself in. (Id. at 1098-1100). Schwab testified that, before Patterson was able to turn himself in, Patterson was arrested at a house owned by Patterson‘s aunt, Patricia Lawson. (Id. at 1100). On cross-examination, Schwab testified that he is representing Patterson on a pending personal injury case where Patterson is asking for
{69} Thereafter, the defense played Samantha Garberson‘s 9-1-1 phone call. (Id. at 1105-1111); (Defendant‘s Ex. A). Defendant‘s exhibits A and C were admitted into evidence, and the defense rested. (Id. at 1115). The jury found Patterson guilty of all four counts and the firearm specifications. (Id. at 1255-1267).
{70} Viewing the evidence in a light most favorable to the State, a rational trier of fact could have concluded that Patterson trespassed into Snyder‘s apartment. The physical and testimonial evidence at trial demonstrated that: Snyder‘s apartment door opened into his apartment; Patterson kicked in Snyder‘s apartment door; Snyder was struggling to hold his apartment door closed to prevent Patterson from entering; and, Patterson fired his weapon while the apartment door was partially opened. From this evidence, a rational trier of fact could have concluded that part of Patterson‘s body crossed the threshold of the apartment door. “[E]vidence of the insertion of any part of the body into an occupied dwelling is sufficient to constitute a trespass for the purpose of establishing a burglary offense.” State v. Wright, 3d Dist. No. 5-01-10 (Aug. 24, 2001), *4, citing State v. Burns, 3d Dist. No. 9-98-21 (Mar. 15, 1999), citing State v. Smith, 10th Dist. No. 94APA04-502 (Nov. 15, 1994). Since the State presented
{71} Next, Patterson argues that the State failed to present sufficient evidence that he purposefully caused Snyder‘s death. We disagree. “A person acts purposely when it is his specific intention to cause a certain result * * *.”
{72} In his fifth assignment of error, Patterson argues that the trial court erred by failing to dismiss the tampering with evidence conviction for lack of venue. We disagree.
{73} Although venue is not a material element of any criminal offense, it must nevertheless be proven at trial beyond a reasonable doubt, unless waived. State v. Draggo, 65 Ohio St.2d 88, 90 (1981). “[V]enue need not be proved in express terms so long as it is established by all the facts and circumstances in the case.” State v. Lee, 3d Dist. No. 14-06-18, 2006-Ohio-6091, ¶ 14, citing State v. Headley, 6 Ohio St.3d 475, 477 (1983); State v. Connell, 6th Dist. No. H-03-026, 2005-Ohio-3202.
(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.
* * *
(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried
for all of those offenses in any jurisdiction in which one of those offenses or any element of those offenses occurred.
{74}
[n]o person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any * * * thing, with purpose to impair its value or availability as evidence in such proceeding or investigation * * *.
{75} Viewed in a light most favorable to the State, the evidence at trial demonstrated that Patterson removed the gun he used to shoot Snyder from the crime scene, which was in Hancock County. A reasonable juror also could have concluded that, when Patterson removed the gun and fled to Toledo, he knew that an investigation was likely to occur. Finally, given Patterson disassembled the gun and threw it out of the car window while driving to Toledo, a rational trier of fact could have concluded that he removed the gun from Hancock County with purpose to impair its availability as evidence in the investigation. As such, a rational trier of fact could have concluded that Patterson, knowing that an official investigation was likely to occur, removed the gun from the murder scene in Hancock County with the purpose of impairing the gun‘s availability in the
{76} Patterson‘s first, third, and fifth assignments of error are overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT GAVE THE JURY INSTRUCTIONS FOR TRESPASS AND TAMPERING WITH EVIDENCE THAT WERE LEGALLY INCORRECT, AND FAILED TO PROPERLY INSTRUCT THE JURY ABOUT THE LESSER INCLUDED OFFENSE OF RECKLESS HOMICIDE.
{77} In his second assignment of error, Patterson argues that the trial court erred by instructing the jury that “the insertion of any part of the body is sufficient to constitute an entrance” for purposes of a trespass for an aggravated burglary. Patterson argues that the facts of this case did not support the jury instruction. Patterson also argues that the trial court erred by instructing the jury on tampering with evidence without any specific intent language. Finally, Patterson argues that the trial court erred by failing to instruct the jury on the lesser included offense of reckless homicide.
{78} “A trial court‘s instructions to a jury must correctly, clearly, and completely state the law applicable to the case.” State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.), citing State v. Thomas, 170 Ohio App.3d 727, 2007-Ohio-1344, ¶ 15 (2d Dist.). When an appellate court reviews jury instructions, it must examine the specific charge at issue in the context of the entire charge, and not in isolation. Id., citing State v. Thompson, 33 Ohio St.3d 1, 13 (1987). Jury instructions are within the trial court‘s discretion, and therefore, not disturbed on appeal absent an abuse of discretion. Id., citing State v. Guster, 66 Ohio St.2d 266, 271 (1981).
{79} The trial court did not abuse its discretion by instructing the jury that “the insertion of any part of the body is sufficient to constitute an entrance” for purposes of a trespass. (Feb. 15, 2011 Tr. at 1224). This Court approved of a similar instruction in State v. Wright, 3d Dist. No. 5-01-10 (Aug. 24, 2001), and therefore, we find no error here. The evidence in this case supported the instruction notwithstanding Patterson‘s argument to the contrary. The fact that there was an eyewitness in Wright is not dispositive here. The trial court also correctly instructed the jury on the tampering with evidence charge, noting, in relevant part, that the jury must find beyond a reasonable doubt that the defendant “removed a thing with the purpose to remove its value or availability as evidence in the proceeding or investigation.” (Feb. 15, 2011 Tr. at 1233). Contrary to Patterson‘s allegation, the trial court did instruct the jury on the required mental culpability element.
{81} Reckless homicide under
{82} The trial court concluded that there was insufficient evidence that Patterson acted recklessly to support a jury instruction on reckless homicide. (Feb. 15, 2011 Tr. at 1132). The trial court did not abuse its discretion in reaching that
{83} Patterson‘s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IX
THE TRIAL COURT ERRED BY ADMITTING A WITNESS’ PRIOR WRITTEN STATEMENT PURSUANT TO EVID.R. 801(D)(1)(B), AND BY PERMITTING VOUCHING.
{84} In his ninth assignment of error, Patterson argues that the trial court erred by admitting Hampton‘s prior written statement under
{86} Patterson argues that Hampton‘s prior written statement was inadmissible hearsay. We disagree. A prior consistent statement is not hearsay if the declarant testifies at trial concerning the statement subject to cross-examination, and the statement is offered to rebut an express or implied charge of recent fabrication, improper influence, or motive against the declarant.
{87} Patterson next argues that Detectives Domme and De Graaf inappropriately vouched for Stacey Daniels and Nicholas Trausch, respectively. We disagree.
{88} “The opinion of a witness as to whether another witness is being truthful is inadmissible.” State v. Huff, 145 Ohio App.3d 555, 561 (1st Dist. 2001). “In our system of justice, it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of the witnesses.” Id., quoting State v. Eastham, 39 Ohio St.3d 307, 312 (Brown, J., concurring). Having police officers vouching for witnesses is especially problematic since “jurors are likely to perceive [them] as expert witnesses, especially when such officers are giving opinions about the present case based
{89} Detective Domme testified that he interviewed Stacey Daniels, but he did not testify concerning her credibility, as Patterson alleges. (Tr. at 1020-1022). Domme testified that he did not reveal any specific information about the investigation to Stacey during the interview, which was offered by the State to show that Hampton‘s only source of information related to the case was Patterson. (Id.). Likewise, Detective De Graaf did not testify concerning Trausch‘s credibility. De Graaf testified that, after law enforcement began to theorize that Patterson fired the weapon through the apartment door as Snyder was closing the door, he re-interviewed Trausch, and Trausch‘s statements during this interview were consistent with this new theory. (Id. at 1068-1069). This testimony was properly admitted for the purpose of showing the investigatory process. Monroe at 34. Finally, even if the trial court‘s admission of Domme and De Graaf‘s testimony was erroneous, Patterson has failed to demonstrate plain error in this case.
{90} Patterson‘s ninth assignment of error is, therefore, overruled.
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT IMPOSING THE SHORTEST SENTENCE AVAILABLE.
{91} In his sixth assignment of error, Patterson argues that the trial court abused its discretion by not sentencing him to the shortest available prison term. Specifically, Patterson argues that his sentence was excessive in light of his minimal criminal record, enrollment in college, his community service, and his babysitting of Daniels’ children so Daniels could maintain employment. He also maintains that the trial court failed to fully consider the sentencing factors regarding mitigation. We disagree.
{92} A trial court‘s sentence will not be disturbed on appeal absent a defendant‘s showing by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law.1 State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth under
{93} Patterson does not contend on appeal that the trial court‘s sentence is contrary to law, and the record demonstrates that the sentence was, in fact, authorized by law.
{94} Patterson‘s sixth assignment of error is, therefore, overruled.
{95} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, J., concurs.
/jlr
WILLAMOWSKI, J., Concurring Separately.
{96} I concur fully with the judgment of the majority, however write separately to emphasize the appropriate standards of review. The standard of review for sentences was set forth in the plurality opinion of Kalish, supra. In
{97} In his sixth assignment of error, Patterson alleges that the trial court erred by failing to sentence him to the shortest possible sentence under